What if the Petitioner Dies?

What if the Petitioner Dies?

Widowers

The widower of a United States citizen (USC) can still obtain lawful permanent residency even after the death of their spouse. To qualify for this benefit, the widower must have been married to the USC at the time of the citizen’s death, and s/he must file for residency within two years of their death.

Things to Note About Widower’s Relief

  • The widower cannot remarry prior to the approval of the residency application.
  • The widower must not have been separated from the deceased spouse at the time of their death.
  • To apply for widower’s relief, a widow will self-petition using form I-360. If the deceased already filed form I-130 that petition will automatically convert to an I-360.
  • The widower’s children do not need a separate petition and will be included in the I-360.
  • A widower may file form I-864W, Exemption from the Affidavit of Support.
  • Widowers may apply for either adjustment of status or can consular process abroad.
  • A widower must be otherwise admissible to the United States.

Evidence

A petition submitted under this provision should include the following evidence:

  • Proof of the deceased’s U.S. citizenship.
  • Poof of the civil marriage between the self-petitioner and the deceased.
  • Proof of termination of all previous marriages.
  • The U.S. citizen’s death certificate.
  • Evidence that the marriage was bona fide.
  • Evidence that the beneficiary and the deceased were not separated at the time of death (proof of cohabitation, etc…).

INA 204(l) in Family-Based Cases

Section 204(l) of the Immigration and Nationality Act provides relief for certain I-130 beneficiaries when the petitioner dies after submitting an I-130 petition, but before the beneficiary receives lawful permanent residency.

To benefit from 204(l) protection, the beneficiary must have lived in the United States at the time of the petitioner’s death and continued to live in the United States on the date of a decision on the petition.

Additionally, the beneficiary must be one of the following:

  • The beneficiary of a pending or approved immediate relative petition;
  • The principal beneficiary of a preference category family petition;
  • The derivative beneficiary of a preference category family petition;
  • A K-1 visa holder who entered the U.S. and married their U.S. citizen fiancé within 90 days.

In the case of multiple or derivative beneficiaries, not all beneficiaries need to have been residing in the U.S.; at least one must have been living in the U.S. for all to benefit from section 204(l).

Things to Note about 204(l) Relief

  • Conditional Residency: If the deceased petitioner was your spouse and your marriage is less than two years old at the time your residency is approved you will not be required to file an I-751, in two years, to remove your conditions.
  • Grounds of Inadmissibility: Section 204(l) does not waive grounds of inadmissibility for purposes of adjustment of status; however, USCIS may in its discretion, waive certain grounds of inadmissibility for 204(l) petitions. If the qualifying relationship upon which you would have based a waiver application is with the deceased person, USCIS can deem the death “to be the functional equivalent of a finding of extreme hardship.”

How to Request 204(l) Relief?

To request 204(l) relief, you will make a written request to USCIS. There is no form or fee; however, you will need to submit supporting evidence with your request. In requesting relief, you should include the following evidence and information:

  • Your name, the deceased petitioner’s name, and the names of any other beneficiaries on the petition;
  • Your alien number, the deceased petitioner’s alien number, and the alien numbers of all other beneficiaries;
  • The receipt number for your petition;
  • The petitioner’s death certificate, with English translation;
  • Proof of U.S. residence for one of the beneficiaries;
  • Form I-864, Affidavit of Support, filed by a substitute sponsor.

If you would like information about pursuing a petition after the death of a petitioner, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, have extensive experience with widower’s petitions and 204(l) cases. Please feel free to call us at 510-488-1020 to see how we can help!

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